Custom, Excise & Service Tax Tribunal
M/S. Komatsu India Pvt. Ltd vs Cce, Nagpur on 29 November, 2017
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/85327/16
(Arising out Order-in- Appeal No. NGP-EXCUS-000-APP-15-16 dated 27.11.2015 passed by the Commissioner of Central Excise & Customs (A), Nagpur)
For approval and signature:
Honble Shri Raju, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
M/s. Komatsu India Pvt. Ltd.
Appellant
Vs.
CCE, Nagpur
Respondent
Appearance:
Shri Ganesh K.S. Iyer, Advocate for the appellant Shri S.V. Nair, AC (AR) for the respondent CORAM:
Honble Shri Raju, Member (Technical) Date of hearing : 27.10.2017 Date of decision : 29.11.17 O R D E R No: ..
Per: Raju This appeal has been filed by M/s. Komatsu India Pvt. Ltd. against demand of interest and imposition of penalty.
2. Ld. Counsel for the appellants argued that they had wrongly availed cenvat credit twice during the month of May 2011on the same document but the same was reversed without utilising the said credit. The credit was reversed in October 2012. He argued that they reversed without utilising the same, therefore interest should not be demanded and penalty should not be imposed. They also challenged the demand of credit on the ground of limitation ascertaining that ingredients for invoking the extended period of limitation are not available in the instant case. Ld. Counsel relied on the decision of Hon'ble High Court of Madras in the case of Strategic Engineering (P) Ltd. 2014 (310) ELT 509. He also argued that the bar of limitation would apply to demand of interest also and for the purpose he relied on the decision in the case of Emco Ltd. 2011 (272) ELT 136 and in the decision of TVS Whirlpool Ltd. 2000 (119) ELT A177 (SC). He further argued that show-cause notice is not sustainable and no penalties can be imposed. Ld. Counsel submitted the summary of cenvat of 2011-12 and 2012-13.
3. Ld. AR relies on the impugned order.
4. I have gone through the rival submissions.
5. It is noted that in the month of May 2011 the appellants availed credit on two documents twice. The total amount of credit wrongly availed exceeded `25 lakhs which is a small sum. The total availment of credit was deducted by scrutiny of records by the revenue and the same was ultimately reversed on 19.12.2012 after more than one and half years of wrong availment. The primary defence of the appellants is that they have not utilised the said credit and it was merely a book entry. In support of same, they have produced the summary of CENVAT of 2011-12 and 2012-13. It is seen that the closing balance in the month of May was as under:-
Month Closing Balance B.E.D Addl. Duty Cess 2% Cess 1% May 2011 6,087,432/-
8,294,863/-
121,815/-
59,901/-
In the month of utilisation of credit:-
Month Credit Utilised B.E.D Addl. Duty Cess 2% Cess 1% June 2011 18,344,099 /-
366,882/-
183,441/-
6. It is seen that the entire credit available at the end of the month of May 2011 was utilised by the appellants in the month of June itself. In these circumstances, it cannot be said that the credit taken was not utilised and was merely a book entry. In these circumstances, the provisions of Rule 2014 are clearly attracted and appellant is liable to pay interest and penalty.
7. Ld. Counsel has sought to invoke the provisions of limitation in their support. It is seen that the credit wrongly availed amounts to `25 lakhs which is not a small sum. It is not possible for the appellant not to notice such a huge amount of credit taken in a single month. The appellant had not noticed this for almost one and half years during which they would have got their annual report made and accounts audited for preparing balance sheet. It cannot be but a result of deliberate act. Thus the invocation of extended period is justified in the instant case. The appeal is consequently dismissed.
(Pronounced in Court on ..............................) (Raju) Member (Technical) //SR
- 4 -
E/85327/16